An Overview
I have argued at length in the previous chapter that Syar‚`ah is compatible with constitutionalism. However, the question remains: how can Syar‚`ah play a role in a constitution? Should it become the primary source by inserting its elements into a constitution? Should it be present only in spirit or as an inspiration? In this chapter, I will show how the Indonesian people have responded to this matter.
The basic aim of this chapter is to provide the institutional and historical context for the subsequent chapters analysing the influence of Syar‚`ah in the three main case studies: human rights, the rule of law, and religion, vis-à-vis the state. In order to achieve this goal, it is necessary to discuss the evolution of the struggle for the inclusion of Syar‚`ah into the Indonesian Constitution from the Independence era in 1945 until the Reform era in 1999-2002. The political systems and practices during 1945-2002 will also be examined.
In August 1945, at the last moment, seven words from the Preamble to the Constitution (known as the Jakarta Charter) were removed and thus excluded from the Constitution. The seven words involved a requirement for Muslims to observe the Syar‚`ah. During the last half-century the Indonesian Islamic-based parties have been attempting periodically to have the seven words reinstated, but without success.
Under the Soeharto government (1966-1998), support for the Jakarta Charter was considered subversive and could be punished with years of imprisonment.
Prior to President Soeharto’s resignation, on 21 May 1998, Indonesians had lived under authoritarian regimes for about forty years. The lack of democratic principles in the 1945 Constitution – such as the separation of powers, checks and balances and guarantees of citizens’ civil and political rights – was an important factor contributing to the rise of authoritarianism in Indonesia, after a brief experiment with parliamentary democracy in the 1950s. Constitutional reform is a critical aspect of Indonesia’s transition, for the original form of the 1945 Constitution was an inadequate foundation for democracy. Constitutional reform was also one of the basic demands of the student movement, which led to President Soeharto’s resignation in 1998, and Indonesian political elites have been struggling with the issue ever since.
Soeharto’s departure has also opened up the opportunity for several Muslim groups and political parties to propose the introduction of Syar‚`ah into the Constitution. Although there were Islamic political parties which supported the seven famous words in 1999, I will show, in this chapter, the shifting position of the two largest Islamic organisations, in 1955 and in 1999, on the issue of Syar‚`ah and Constitution, which led to a polarisation by Nationalist and Muslim blocs (and modernist-traditionalist blocs) in 1955 to formal and substantive Syar‚`ah groups in 1999. Whilst both Muhammadiyah and NU (around sixty million members) supported the inclusion of Syar‚`ah into the Constitution in 1955 parliamentary debates, both rejected such proposals in 1999-2002.
The Chapter will be divided into three parts. The first part will evaluate the debate on the Jakarta Charter in 1945 and in 1955. The second part will examine the issue of Syar‚`ah, vis-à-vis state ideology under New Order government. The last part will focus on the process, the debate and the results of the Amendment to the 1945 Constitution following the fall of Soeharto’s government. In particular, it will highlight the efforts of several Islamic political parties to propose the inclusion of Syar‚`ah into the Constitution.
The Jakarta Charter and the 1945 Constitution
From the beginning of the Japanese occupation, the Japanese military government had to cooperate with the available nationalist leaders against the Dutch and later assign them as intermediaries to rule the country, and to participate in the costly on-going war against the Allies. During the last phase of the occupation the Japanese military leaders had to give in to the growing demands of the independence movement.
It was also natural that the Japanese occupying power should try to use religion, in this case Islam, for its own wartime ends. M.A. Azis, as quoted by B.J.
Boland, explains:
The Japanese considered Islam as one of the most effective means to penetrate into the spiritual recesses of Indonesian life and to infuse the influence of their own ideas and ideals at the bottom of the society.
For exactly the same reasons, Christianity was chosen in the Philippines as an important vehicle for ideological penetration.1
1 M.A. Azis, ‘Japan’s Colonialism and Indonesia,’ as quoted by B. J. Boland, The Struggle of Islam in Modern Indonesia, (The Hague, 1982), 9; By comparison, see Shigeru Sato, War, Nationalism and Peasants:
On 29 April 1945, the Japanese established the BPUPK (the Investigating Committee for the Preparation of Independence) to discuss the foundation of the state and the constitution for the future of Indonesia. The BPUPK consisted of 62 members, with Dr. Radjiman Wedyodiningrat and R.P. Soeroso as its president and vice-president respectively. With an eye towards facilitating a stable and peaceful transition, the Japanese tried to ensure that the BPUK was composed of men from the older and more experienced generation of leaders associated with the different pre-war nationalist and Islamic movements.2
Ideologically, the BPUPK represented the two main groups of thought: the
‘secular’ nationalists and the Islamic nationalists.3 This explains why one of the issues during the first session of the BPUPK (19 May – 1 June 1945) was the basic foundation (or ideology) of the state: whether Indonesia would be an Islamic state or a state which would separate religious from state affairs. In this regard, Professor Soepomo, one of members of BPUPK, remarked:
On the one hand (there) is the opinion of the religious experts [ahli agama], who are proposing to establish Indonesia as an Islamic state, and on the other hand (there) is another proposal, as has just been proposed by Mr. Mohammad Hatta, that is, a national unitary state which will separate the state from religious affairs.4
Java under the Japanese Occupation 1942-1945, (Australia, Allen & Unwin, 1994) and Kobayashi Yasuko,
‘Kyai and Japanese Military’ (1997) 4 (3) Studia Islamika, 65-98, which discusses the relationship between Indonesian ‘ulam~ and Japanese Military.
2 M.C. Ricklefs, A History of Modern Indonesia, C. 1300 to the Present, (London : Macmillan, 1981), 209.
3 See Endang Saefuddin Anshari, ‘The Jakarta Charter of June 1945: A History of the Gentleman’s Agreement between the Islamic and the Secular Nationalists in Modern Indonesia’, M.A thesis, McGill University, 1976, 14.
4 Soepomo’s statement above is quoted from H. Muhammad Yamin, Naskah Persiapan Undang-Undang Dasar 1945, Vol. 1 (Jakarta, Yayasan Prapanca, 1959), 250.
In order to find a solution, a sub-committee consisting of nine members was formed. The nine members were: Soekarno, Mohammad Hatta, A.A. Maramis, Abikoesno Tjokrosedjoso, Abdul Kahar Muzakkir, H. Agus Salim, Ahmad Soebardjo, Abdul Wahid Hasjim and Muhammad Yamin. After serious discussions, this sub-committee eventually succeeded in reaching a modus vivendi between the Islamic group and the ‘secular’ group. On the first day of the second session, which was held on 10 July 1945, Soekarno reported on the agreement reached by the nine members. According to him, the five principles known as Pancasila, upon which a free Indonesia would be based, appeared in the Preamble of the Constitution.5 This Preamble was signed by the nine-member committee in Jakarta on 22 June, 1945, and later came to be known as the Jakarta Charter (Piagam Jakarta).6 The five principles were: the belief in God with the obligation to implement Islamic Syari`ah for its adherents; a just and civilized humanity; the unity of Indonesia; a democracy guided by wisdom arising from consultation and representation; and social justice for the whole Indonesian people.
The agreement above reflected a compromise between the two opposing groups above. The draft of the Constitution did not state that Indonesia was to be an Islamic state. It went further, stating that either a Muslim or a non-Muslim could be appointed as Indonesian president.7 Based on the agreement above, the draft
5 Yamin, ibid, 153-154.
6 The full text of the Jakarta Charter (English version) can be read in Adnan Buyung Nasution, The Aspiration for Constitutional Government in Indonesia: A Socio-legal Study of the Indonesian Konstituante 1956- 1959 (Jakarta, Pustaka Sinar Harapan, 1992), Appendix 2, 436.
7 Wahid Hasyim of Nahdlatul Ulama (NU) actually proposed that the adherence to islam as one of the qualifications to be eligible for the President of the Vice-President of Indonesia. Hasyim also
accommodated non-Muslim concerns, stating that Islamic law would be applied only to Muslims. Both Islamic and nationalist groups agreed to reach this ‘middle position’: the state recognised Muslims as the majority by granting them the right to implement their own law, and at the same time, the draft did not amount to the creation of a Negara Islam or Islamic state. In the words of M.B. Hooker, “While the Charter specifically refers to Syari`ah, it is vague as to its exact scope and competence, leaving much room for debate over its jurisdiction.”8 However, politically speaking, the vagueness could be seen as a win-win solution for both parties.
The agreement remained unchanged until 18 August 1945, one day after the proclamation of Indonesian independence,9 when the PPKI (the Preparatory Committee for Indonesian Independence) was formed. This committee, which consisted of 27 members and was headed by Soekarno and Mohammad Hatta as Chairman and Vice-Chairman respectively, held a meeting on the same day it was formed. Within a short time (between 11.30 am and 1.45 pm) the meeting brought about several important changes to the Preamble, in which the formulation of Pancasila appeared, and to the body of the Constitution.
suggested that “the religion of the state is Islam”. These proposals were rejected. Soekarno, for instance, sought to assure that since Muslims are the majority, the President would obviously be a Muslim without necessarily mentioning this in the Constitution. See Yamin, above n 4, 261-263.
8 MB. Hooker, ‘The State and Shari’a in Indonesia’, in Arskal Salim and Azyumardi Azra (eds), Shari’a and Politics in Modern Indonesia (Singapore, ISEAS, 2003), 38.
9 Before the promise of the Japanese government to grant independence for Indonesia was materialised, Japan surrendered unconditionally to the Allies in 1945, which meant that the Japanese military personnel had to maintain the status-quo until the Allied forces, including the Dutch, took over. During this power vacuum, the national leaders of Indonesia took the risky initiative of proclaiming its independence, on 17 August 1945. The next day, Soekarno and Hatta, the co-signers of the Independence Proclamation, became respectively the country’s first President and Vice President. On that same day, the members of the preparatory committee promulgated the
A change was made to the first principle by omitting the ‘seven words’: dengan kewajiban menjalankan Syariat Islam bagi pemeluknya (with the obligation to implement the Islamic Syari`ah for its adherents). Therefore, the first principle became: the Belief in the One, Supreme God. This change was surprising to the Islamic group.
Questions arose as to the reason why the formulation of the Jakarta Charter, which had been achieved with difficulty, could be changed with such ease. It was said that a Japanese officer of the Kaigun (Japanese navy) came to Mohammad Hatta to tell him that a Christian representative from Eastern Indonesia objected to the clause of
‘Syari`ah’. He was warned that should it be kept unchanged, he and his people (non- Muslims from Eastern Indonesia) would separate from the Republic of Indonesia.
Hatta was influenced by this message and promised to bring the message to the meeting.10
Consequently, most of the Muslim leaders agreed to Hatta’s demands that references to the Jakarta Charter be removed from the preamble, that the related clause in the section on religion be excised. These changes were accepted by the PPKI, and Soekarno and Hatta were elected as President and Vice-President, respectively.
However, there was no doubt that several Muslim leaders felt betrayed. They had been involved in a long struggle for independence but when the fruits of their struggle, namely the freedom of Indonesia, had been achieved, their aspirations were
constitution. See Adam Malik, Riwajat dan Perdjuangan sekitar Proklamasi Kemerdekaan Indonesia 17 Agustus 1945, (Jakarta, Penerbit Widjaya, 1956), 30-40.
10 B.J. Boland, The Struggle of Islam in Modern Indonesia (The Hague, Martinus Nijhoff, 1982), 45.
neglected. The omission of the seven words meant that the 1945 Constitution did not specifically guarantee Muslims the right to implement their own law (Syari`ah).
Isa Anshary, a prominent Muslim leader, considered this event to be tantamount to dishonest politics.11
Others took the view that the omission of the seven words reflected the biggest sacrifice by Muslims for the unity of the nation, which was very crucial at that time. The sacrifice was so great that not even the word “Islam” and “Muslim” or
“Syari’at” were mentioned in the constitution.12 Later in 1978, Alamsjah Ratu Perwiranegara (Minister for Religion Affairs) interpreted that moment as “the greatest gift and sacrifice of the humble Indonesian Muslims as a majority population for the sake of Indonesian national unity and integrity”.13
Soekarno reminded Muslim leaders that they could try to amend the text at a later date through constitutional procedures. To his credit Soekarno was able to convince even the most ardent opponents of the Jakarta Charter to lend their support, and as a result the draft constitution was unanimously accepted. Soekarno also stressed that the 1945 Constitution was only a ‘temporary constitution’, a
‘lightning constitution’, or a ‘revolutionary constitution’, which, in due course, could be perfected by elected representatives of the people. In Soekarno’s own words:
Gentlemen, all of you realise that the Constitution we decide today [18 August 1945] is a temporary constitution. If I may I would like to use the words ‘a lighting constitution’. At a later time when the State is in a
11 Anshari, above n 3, 42.
12 See Mohammad Natsir, ‘Pengorbanan Umat Islam Sangat Besar’, interview, Panji Masyarakat, 11 June 1987, 28.
13 See Pelita (Indonesian daily newspaper), 12 June 1978.
peaceful and calm situation we would certainly bring together the members of the People’s Assembly to make a more complete and perfect constitution.14
In this regard, several Muslim leaders were convinced that when the general elections came the issue could be discussed. As a majority, they believed that their group would achieve the majority vote.15
There were some Muslim leaders, such as Ki Bagus Hadikusumo, who believed that, although the seven words were omitted, their goals and struggle were implicitly accepted. Hadikusomo asked Hatta what was meant by the phrase Belief in One Supreme God. Hatta answered that it was nothing other than the Tawˆ‚d of Islamic monotheism.16
However, Sidjabat, a Christian scholar, took the view that the first principle of Pancasila is a general and neutral concept of God that gives room for everyone who worships God without becoming indifferent in matters of religions.17 Thus, the Indonesian term Tuhan is capable of encompassing Christian, Islamic, Buddhist, and Hindu concepts of God. The term is used for ‘God’ in place of the identical Arabic word, Allah, with its stronger Islamic connotations.
B.J. Boland shares Sidjabat’s view, above, pointing out that:
(the) first principle of Pantjasila is neither a syncretic compromise...nor is it a concept with only one interpretation, so that adherents of one religion could prescribe to others what their belief in God and their worship should be like, in order to be in accordance with the basis of the state. This first principle must be understood as a multi-interpretable
14 As quoted in Yamin, above n 4, 410.
15 Boland, above n 10, 37.
16 Natsir, above n 12.
17 W.B. Sidjabat, Religious Tolerance and the Christian Faith, (Jakarta, Badan Penerbit Kristen, 1965), 74.
formula and must be appreciated as providing a real possibility for people to agree while disagreeing.18
The government of the new republic realised that certain concessions would have to be made. One of the most significant of these came in January 1946, with the establishment of an Indonesian Ministry of Religious Affairs.19 The establishment of this ministry provided proof that the government had implemented the first sila (pillar) of the Pancasila: Indonesia is neither a secular state, nor an Islamic state. In later years, the official structure of the Ministry also came to include separate sections addressing the needs of Indonesia’s various religious communities, although the Muslim section still dominates all others, and generally controls the Ministry itself.
For instance, all Ministers of Religious Affairs, since its establishment in 1946, have been Muslims.
However, the missing words of the Piagam Jakarta have never disappeared from the debate on what the state of Indonesia is supposed to represent for Islam, the religion to which the vast majority of the population adhere. The seven words are so central, in fact, that some Muslim groups have persistently called for re-inclusion of the Piagam Jakarta in the Constitution, ever since those words were dropped in 1945. The Muslim leaders were basically unable to accept that in a country where Muslims are the majority there can be anything other than Islam as the basis of
18 Boland, above n 10, 39.
19 Deliar Noor, Administration of Islam in Indonesia, (Itacha, N.Y., Cornell Modern Indonesia Project Southeast Asia Program Cornell University, 1978), 8-9; Hooker, above n 8, 36.
unity.20 Ahmad Hassan, for instance, questioned why the 90 per cent Muslim majority must be overlooked because of the 10 per cent non-Muslim minority.21
There were more radical attempts to make the Syari`ah the basis of the Indonesian state. Kartosoewirjo declared the Islamic State of Indonesia (Negara Islam Indonesia). Kartosoewirjo’s movement, later known by the name of Darul Islam, developed into a full-blown rival to the Republic, which resisted the return of the Siliwangi division to West Java in 1949, and, after 1950, continued a guerrilla war against the Jakarta government. Kartosoewirjo’s Islamic State had its own Constitution, explicitly based on the Syari`ah, and a judiciary where ulama delivered Islamic justice.
The Darul Islam remained a military and political embarrassment to the Jakarta government until Kartosoewirjo’s capture, and the surrender of the other West Javanese leaders in 1962.22
Konstituante
Indonesia has been governed by three constitutions since independence: the 1945 Constitution, the 1949 Constitution and the Provisional Constitution of 1950.
The 1945 Constitution came into force on 18 August, 1945. On 27 December 1949, the colonial government was back, and succeeded in breaking up the Republic of
20 Ricklefs, above n 2, 190.
21 Howard M. Federspiel, Persatuan Islam: Islamic Reform in Twentieth Century Indonesia, (Ithaca, N.Y., Cornell University, 1970), 87-89.
22 See George Kahin, Nationalism and Revolution in Indonesia, (Ithaca, N.Y., Cornell University Press, 1952), 326-331. More information on Kartosuwirjo could be read in Kees van Dijk, Rebellion under the Banner of Islam; The Darul Islam in Indonesia, (The Hague, Martinus Nijhoff, 1981); Al Chaidar, Pemikiran Politik Proklamator Negara Islam Indonesia S.M. Kartosoewirjo: Fakta dan Sejarah Darul Islam, (Jakarta, Darul Falah, 1999).
Indonesia (RI), whereupon the new Republic of the United States of Indonesia (Republik Indonesia Serikat - RIS) came into being. A new constitution, known as the 1949 Constitution, replaced the 1945 Constitution.23
The 1949 Constitution did not last long, however, because there were tremendous efforts made within the RIS during its first seven months to transform Indonesia from a union of states (a federation of states) into a unitary state. On 17 August 1950, the Provisional Constitution came into force with the re-establishment of the Republic of Indonesia. The new state did not bring back the 1945 Constitution.24
The drive to make Islam the basis of the state was revived in the Constituent Assembly (Konstituante), which was the result of the first national general election in 1954. The debates led to a situation in which no faction had a majority of the vote.
The Provisional Constitution of 1950 was enforced until mid-1959, when a decree by President Soekarno replaced it with the old 1945 Constitution, which was originally intended to be a temporary measure before the formal constitution, devised by the popularly elected assembly, was established. I will examine this political situation briefly.
The defeat of the Darul Islam movement transferred the struggle over the religio-political identity of Indonesia to the political sphere. Masyumi (Majelis Syura Muslimin Indonesia - Consultative Council of Indonesian Muslims) became the
23 See CST Kansil, Christine Kansil and Engeline Palendeng, Konstitusi-Konstitusi Indonesia Tahun 1945- 2000 (Jakarta, Pustaka Sinar Harapan, 2001), especially Chapter 1.
24 Anhar Gonggong, Menengok Sejarah Konstitusi Indonesia, (Yogyakarta, Ombak & Media Presindo, 2002), 19-33.